Law Commons^™

Missouri's Innocent Citizens: An Examination Of Missouri's Response To Domestic Violence Incidents Against Children And Teens, Keith P. Freie

Keith P Freie

In 2010 the Missouri Attorney’s General’s Office created a Domestic Violence Task Force for the purpose of analyzing Missouri’s Domestic Violence laws. In 2011, the Missouri General Assembly enacted Senate Bill 320 which included several changes to Missouri’s domestic violence laws stemming from several recommendations from the Attorney General’s Task Force. While Missouri’s 2011 domestic violence law is a comprehensive solution to the many unaddressed needs of child and teen domestic violence victims, additional solutions need to be considered to fully address the problem. Those solutions may include creating special domestic violence and child abuse courts and creating educational programs …

Command Responsibility In The International Tribunals: Is There A Hierarchy?, Adria De Landri

Adria De Landri

No abstract provided.

A Health Care Autopsy, Marc Gans

Marc Gans

This paper analyzes each of the factors responsible for the rapid rise in health care spending in this country. This includes an in-depth analysis of prescription drug expenditures, which has been the fastest growing component of health care costs. Lastly, this paper will address whether there is anything particularly unique about health care spending in California.

The Hollowness Of The Harm Principle, Steven D. Smith

Steven D. Smith

Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …

Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith

Steven D. Smith

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

"Because That's Where The Money Is": A Theory Of Corporate Legal Compliance, William Bradford

william bradford

Upon his capture in 1934, the legendary bank robber Willie Sutton was asked by FBI agents, Why do you rob banks, Willie? Sutton, who believed the question to be rhetorical, replied, dryly, Because that's where the money is. In other words, Sutton understood his interrogator to be inquiring as to why he robbed banks rather than, say, homes, or gas stations, or church offering plates. Had he understood the query as intended - i.e., what was it about Willie Sutton the impelled Willie Sutton to crime when many others, struggling to survive the Great Depression, were not? - Sutton could …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace

Nicholas Buccola

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …

The Toll Road Not Taken: Could The One Option Less Used Make A Difference?, Carlos C. Sun

Carlos C Sun

There is a growing transportation financing crisis in the United States caused by a rapidly aging transportation infrastructure, a growing demand for transportation, soaring infrastructure costs and a lack of systematic planning to account for these multiple trends. Potholes, deteriorating bridges and cracked pavements are everywhere, regardless of geographical location, climate or population density. Such infrastructure deterioration negatively impacts the environment via pollution, wasted fuel and inefficient travel patterns. Courts in states such as California have responded pragmatically to the crisis by opening the door to road tolling in various forms. This shift in states’ attitudes toward toll roads comes …

Save The Economy: Break Up The Big Banks And Shape Up The Regulators, Charles W. Murdock

Charles W. Murdock

Save the Economy: Break Up the Big Banks and Shape Up the Regulators

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This article asserts that the big banks were major culprits in causing the crisis, by funding the non-bank lenders that created the toxic mortgages which the big banks securitized and sold to unwary investors. Paradoxically, banks which were then too big to fail are even larger today.

The article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It …

Civil Protective Orders In Integrated Domestic Violence Court: An Empirical Study, Erika Rickard

Erika Rickard

New York's Integrated Domestic Violence (IDV) Court was created to streamline the judicial process and promote efficiency and victim safety in cases of domestic violence. One would expect this collaboration and concerted effort on improving the justice system for victims of domestic violence would yield faster results than under the traditional system. The data presented here indicate just the opposite: IDV Courts take longer to address motions for civil protective orders, and are not significantly more likely to grant such orders than traditional matrimonial courts. Delays in the civil protective order process suggest that the problem-solving court may not be …

Understanding Csr: An Empirical Study Of Private Self-Regulation, Benedict Sheehy

Benedict Sheehy

Abstract: The article is a study of an important burgeoning form of regulation—private self-regulation—in the area of Corporate Social Responsibility (CSR). Rather than taking a purely theoretical approach or a social scientific study relying publicly reported data, the article addresses the issue by way of interview based case studies. As a study in regulation it clarifies the difference between various types of self-regulation, trade associations’ codes as private self-regulation and government sponsored self-regulation. This distinction hampers efforts to understand the important aspects of motivation and compliance. This study provides empirical examination of compliance in private self-regulation. Given the impact and …

Teaching Values, Teaching Stereotypes: Sex Ed And Indoctrination In Public Schools, Jennifer S. Hendricks

College of Law Faculty Scholarship

Many sex education curricula currently used in public schools indoctrinate students in gender stereotypes. As expressed in the title of one article: “If You Don’t Aim to Please, Don’t Dress to Tease,” and Other Public School Sex Education Lessons Subsidized by You, the Federal Taxpayer (Jennifer L. Greenblatt, 14 TEX. J. ON C.L. & C.R. 1 (2008)). Other lessons pertain not only to responsibility for sexual activity but to lifelong approaches to family life and individual achievement. One lesson, for example, instructs students that, in marriage, men need sex from their wives and women need financial support from their husbands. …

Of Woman Born? Technology, Relationship, And The Right To A Human Mother, Jennifer S. Hendricks

College of Law Faculty Scholarship

This article explores the legal implications of a scientific fantasy: the fantasy of building artificial wombs that could gestate a human child from conception. It takes as its touchstone a claim by sociologist Barbara Katz Rothman, who writes, “Every human child has a right to a human mother.”

While the article discusses the legal principles that would apply to artificial wombs, it is skeptical about the technological possibility of artificial wombs in the foreseeable future. Accordingly, the focus of the article is the effect that the fantasy of artificial gestation has on the legal discourse around pregnancy and reproduction today. …

Body And Soul: Equality, Pregnancy, And The Unitary Right To Abortion, Jennifer S. Hendricks

College of Law Faculty Scholarship

This Article explores equality-based arguments for abortion rights, revealing both their necessity and their pitfalls. It first uses the narrowness of the “health exception” to abortion regulations to show why equality arguments are needed—because our legal tradition's conception of liberty is based on male experience, and we have no theory of basic human rights grounded in women's reproductive experiences. Next, however, the Article shows that equality arguments, although necessary, can undermine women's reproductive freedom because they require that pregnancy and abortion be analogized to male experiences. The result is that equality arguments focus on either the bodily or the social …

Development Lending To Municipalities By The World Bank Group, Asheesh Bhalla

Asheesh Bhalla

The World Bank Group has recently shifted its development lending policies to have a greater focus on lending to municipalities and developing financial institutions and systems of market creation at the local level. The author reviews this policy shift, and the consequences of such policy changes on local government institutions and law.

Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich

Jeffrey S. Helmreich

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing …

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

Jeffrey M. Cohen

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially …

The Geography Of Sexuality, Yishai Blank, Issi Rosen-Zvi

Yishai Blank

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (DOMA) and the military’s “Don’t Ask Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and a state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation of sexuality has been decentralized, with cities being the main locus where the most important issues pertaining to the lives of gays and lesbians are decided. This “localization …

Chevron As A Doctrine Of Hard Cases, Frederick Liu

Frederick Liu

The conventional wisdom holds that the Chevron doctrine rests on a presumption about congressional intent—a presumption that when a statute is ambiguous, Congress intended the gap to be filled by the agency charged with administering the statute. But the presumption is a mere fiction; Congress generally has no view on whether ambiguities in a statute should be resolved by the agency or the court. This Article proposes a new theory of Chevron, one that rests on a simple reality: No matter how determinate the law may seem, there will inevitably be hard cases—cases in which the law runs out before …

Ada And The Internet: Standardizing The Accessibility Of Web Sites, Laura Corcoran

Laura Corcoran

The Department of Justice (DOJ) is currently considering what standards should be applied to commercial web sites to make online information and services accessible to people with disabilities. Should the overall performance of a website be the measuring standard, or would compliance with technical rules be a sufficient measure of web accessibility?

There are dangers in adopting technical standards in DOJ regulations. The process of updating regulations is slow and will not keep pace with changing technology. Accessibility issues involving detailed technical standards would likely deteriorate into battles about computer programming techniques. Compliance with technical standards does not necessarily guarantee …

Originalism And The Aristotelian Tradition: Virtue’S Home In Originalism, Lee Strang

Lee J Strang

A concept fundamental to philosophy—virtue—is, with a few notable exceptions, absent from scholarship on constitutional interpretation generally, and originalism in particular. Furthermore, common perceptions of both virtue ethics and originalism have prevented exploration of how incorporating virtue ethics’ insights may make originalism a better theory of constitutional interpretation. This Article fills that void by explaining the many ways in which concepts from virtue ethics are compatible with an originalist theory of constitutional interpretation. More importantly, I show that originalism is more normatively attractive and descriptively accurate when it takes on board virtue ethics’ insights.

Originalism must articulate virtue’s role in …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Public Wrongs And The ‘Criminal Law’S Business’: When Victims Won’T Share, Michelle Madden Dempsey

Working Paper Series

Amongst the many valuable contributions that Professor Antony Duff has made to criminal law theory is his account of what it means for a wrong to be public in character. In this chapter, I sketch an alternative way of thinking about criminalization, one which attempts to remain true to the important insights that illuminate Duff’s account, while providing (it is hoped) a more satisfying explanation of cases involving victims who reject the criminal law’s intervention.

Cyberlaw 2.0, Jacqueline Lipton

Jacqueline D Lipton

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Who Are Refugees?, Matthew Lister

Matthew J. Lister

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the …